California Employment Law
California Employment Law Questions Answered by Legal Experts
Thanks for the response. I wanted to point out couple of things. I belong to a protected class, in the sense I am a female of a different national origin and the consultant was harassing three people belonging to my ethnicity. Also, the criteria for lay off was track record of three years which was in my case exemplary ratings. The incident with the warning took place right after the layoffs were announced at the company level. Also, the fact I mentioned to my manager that I was planning a family and potentially take leave, is that not pregnancy related?
The other thing is, I was not intending to spend money on a lawsuit. But if I file a charge with EEOC, I thought it was not going to cost me? Even if I lose in that case, I don't mind but EEOC would have investigated the case I would think. If I win also I don't mind if EEOC asks me to give back the payment, but I am worried can the employer come after me to claim damages based on the severance agreement?
One more point is that since the layoff, management has not been providing references or potentially not letting us be hired in eligible positions. Is there anyway to enforce anything there through the EEOC? I think these would count for outside the severance agreement if they are for the future and not the past?
Samali,Thank you for your reply. I do understand the points you are making about being a member of a protected class, etc., but the problem is that a plaintiff bears the burden of proving their claim by a preponderance of the evidence. In other words, you must demonstrate that it is more likely than not that you would have retained your job had you not been over 40, or had not mentioned starting a family, or had not been a minority.Right now, I am hearing speculation as to these things being the case, but I see no direct evidence. To the contrary, it would seem your layoff was inevitable since it was part of a much larger reduction in force. If you were the only one let go that would be one thing, but generally speaking, discrimination cases become nearly impossible to prove if the employer let go of other people at the same time.You are correct that an EEOC complaint will not cost you anything. However, the EEOC rarely "takes on" cases and prosecutes them itself all the way to judgment. In most instances, they investigate and then issue a "right to sue letter" if they find cause, which will then authorize you to file a lawsuit in civil court. Thus, the EEOC itself is not a "be all end all" remedy for discrimination. Very rarely will your dispute resolve through the EEOC, and if it does, it's because the discrimination was particularly egregious and the EEOC has decided to take on the case itself.Moreover, the EEOC will see that you signed a release and probably decline to investigate your claim all together if they conclude your release was knowingly and voluntarily signed. The case analysis won't even extend beyond that point.I think you are overestimating how easy it is to get past a waiver of your right to sue. These waivers are signed by hundreds of employees across the country every day and they are routinely enforced by the EEOC and the courts. Again, only if you can show that you signed under duress or due to fraud of some kind will they typically be invalidated.Sure, you can still try to bring a claim after you sign a release, and you won't have to worry about the EEOC or your employer asking you for the money back (they can't), but expect a quick denial, especially if you sign the release.With regard to your last question, your employer is under no legal obligation to provide references or to re-hire you. You would only have a claim for discrimination if you can demonstrate specifically that your employer is doing these things because you are "too old," an ethnic minority, or due to some other protected trait. Realistically, this is just about impossible to prove and not something that would be worth pursuing, especially because you indicate that it is happening to "us," so it seems to be something your former company is doing across the board.Again, please feel free to let me know if you have any further concerns. If I have answered your question, I would be very grateful for a positive rating of my service so that I may receive credit for assisting you.Kindest regards.
Thank you for your response again.The details are quite clarifying. I would be happy to rate the responses for your credit but I do have some further questions,
Regarding the speculation you are mentioning, yes you are right I only have notes as of the dates of the incidents since I was noting everythng, and an email to my manager saying the consultant was harrassing me.
Regarding waiver and money back, what I meant was whether the employer can counter-sue or counter claim their expenses from me as soon as they find out I have filed a charge with EEOC? The waiver says, if there is a breach they can claim attorney fees from me etc.
Regarding re-hiring, I am the only one who has applied to so many positions, and probably qualified (due to my experience) for multiple positions. They even opened intern and other positions right after they eliminated my position through layoff. Is this in anyway retaliation of the layoff or discrimination?
Lastly, I can still revoke my waiver if I want to within today, and even if I don't want to sue (like you said it will cost too much), will it help with just having EEOC look into this, and possibly alert the employer (the company is very big) on what their individual managers did and possibly get me something (either rehired, or compensated)?
Thanks for the response again,
In the first question, I was referring to just simply "filing a charge with EEOC" and not as far as a lawsuit, where my employer can claim a breach or counter sue me if I have a waiver signed?
On the last point, I think you misunderstood the question. The situation was pertaining to "if I revoked the waiver" which means I would have not signed it at all.
Also let me know if the notes and the email that I mentioned above count for anything. Thank you.
One question - Even if the layoff cannot be proven as being related to any discrimination, is it not valid complaint that the discrimination itself was there. Basically the primary incident being the one where I tried to report something to my manager related to discrimination or ethics and was retaliated against etc. with the HR interview and false allegations on me. I was laid off later but the fact that I was subjected to the incident while being an employee, does it not allow me to complain against my employer irrespective of the termination aspect? And I am within the statute of limitations so to speak to report that also, looks like. Is there any hostile work environment that applies there or do I have to be an active employee for that?
Thank you for responding. I can understand where you are alluding. I am just trying to see, for both types of claims they were endured when I was an employee and if I was to continue in the employment without being laid off, wouldn't the damages have been about the emotional stress, defamation, not being promoted etc. as well as a remedy of the situation by action against the involved people or something?
If something is unethical but not illegal, does that complaint also go to EEOC?
Hi, thank you again for the answers. It looks like I don't gain much by disputing the terms of the layoff. If I sign the waiver to get as much money as possible, I wanted to make sure I am waiving rights for only the past and not the future (in case there is retaliation during rehiring process). Is it possible for you to advise me on that? I have pasted the pages of the agreement below,
It did not take the pages looks like, is there anyway I can email you a four page scan? My name is XXXXX XXXXX on the document.
Thank you for the answer. I have just posted another question to you to look at the document but I am having trouble somehow attaching anything to these message windows.
DISCLAIMER: Answers from Experts on JustAnswer are not substitutes for the advice of an attorney. JustAnswer is a public forum and questions and responses are not private or confidential or protected by the attorney-client privilege. The Expert above is not your attorney, and the response above is not legal advice. You should not read this response to propose specific action or address specific circumstances, but only to give you a sense of general principles of law that might affect the situation you describe. Application of these general principles to particular circumstances must be done by a lawyer who has spoken with you in confidence, learned all relevant information, and explored various options. Before acting on these general principles, you should hire a lawyer licensed to practice law in the jurisdiction to which your question pertains.
The responses above are from individual Experts, not JustAnswer. The site and services are provided “as is”. To view the verified credential of an Expert, click on the “Verified” symbol in the Expert’s profile. This site is not for emergency questions which should be directed immediately by telephone or in-person to qualified professionals. Please carefully read the Terms of Service (last updated February 8, 2012).